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Cholmondeley and Me

| 6

It was one o'clock in the morning and my beeping phone woke me. One of my papers had been calling, late, very late. I called them back.

"Tom Cholmondeley has just been arrested. He shot someone on his land," said the night news editor in London.

"Where's that coming from?" My fuzzy mind knew it didn't sound right. "That was a year ago. The case was dropped. Someone's sent an old story."

"No, no he's done it again."

And that was it. Cholmondeley, released a year earlier after shooting an undercover wildlife ranger in self-defence, was already tried and hanged. Driving up to Nakuru the next morning with the Nairobi press pack, we were pretty much agreed. To shoot one person is unfortunate, to shoot two is starting to look like carelessness.

But then the trial began four months later and things started to unravel. The prosecution didn't seem to have much of  a case. No-one had actually seen what happened. They called witness after witness - 38 in all - many of whom had little to add in the way of evidence. The police investigation sounded shoddy. The scene had not been secured, one of the suspects - Cholmondeley's friend Carl Tundo - had remained free for hours after the shooting. Witness after witness struggled under cross-examination. 

Spent cartridges from Cholmondeley's rifle were not found for days and days. Then they appeared on the day the deputy commissioner was visiting.

The prosecution seemed to rely entire on hearsay, a confession Cholmondeley made to police officers in the immediate aftermath of the killing. He later changed his story to say that Tundo also had a gun.

Defence witnesses also raised serious questions. Staff at Tundo's parents house said he had burned his clothes on the night of the killing. He often carried a handgun tucked down the back of his trousers. They also found two spent cartridges from a handgun in the house a day or so later. A forensic pathologist - more familiar with gun shot wounds than an expert called by the prosecution - said the dead man's wounds were not consistent with a high-powered rifle carried by Cholmondeley. 

I was one of two foreign correspondents who followed the case from start to finish. As the verdict loomed we were both of the same opinion. The prosecution had not done enough to prove Cholmondeley was guilty of anything - much less murder. The lay assessors agreed, finding him not guilty.

Any fair court, we agreed, would also find him not guilty. The only worry was that this was not an ordinary case. It was a highly charged trial with potentional political repercussions. Setting Cholmondeley free might not be possible in a country convinced of his guilt, and with colonial chip on its shoulder.

And so it proved. In what looks like a carefully contrived fudge, Cholmondeley has gone down on a lesser charge. No reasonable judge could have found him guilty of murder. Even manslaughter seems hugely problematic. But the country has got what it wanted: the white toff is guilty.

In so doing the judge has disregarded the entire defence and relied on hearsay evidence.

The verdict exposes some severe shortcomings in Kenyan justice:

  • the inability of the police to conduct any sort of investigation. They must rely on catching people in the act
  • the trial has lasted three years. Even high profile cases like these are subject to delay after delay. The system is under intolerable strain
  • mob justice - common on the streets - exerts pressure on what happens in court. Public perception seemed more important than the evidence
  • lack of forensic science facilities. There was no way of analysing bullet fragments taken from the victim

It took the trial of a white Aristocrat to make me understand the failings of Kenyan justice. I sat through three years of this trial because it was one my newspapers were interested in. But the same faults are on display in trials for thousands of ordinary Kenyans, who cannot afford the kind of defence available to Cholmondeley. No-one really trusts the law. That's why opposition leaders set their thugs on the rampage last year - they knew a legal challenge to rigged elections would go nowhere. 

And if you can't trust the law, nothing else matters. Who will resolve your business dispute? Protect your hard-won freedom? And can democracy survive?

Cholomondeley will be sentenced on Tuesday. I'm heading to Chad on Sunday for a different project so I'll miss the final installment of this story (although an appeal will follow). Some of my friends rather sneered at my interest in this case. But it has taught me as much about modern Kenya, its tensions and challenges, as last year's election violence. Just like the riots, things seem rather different now.

6 Comments

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Anonymous | May 9, 2009 6:58 PM | Reply

Kenyan has become ruthless land of people ONLY wanting money,if you give all money or surrender your land you can be a free and protected person, by every authority. If, your color is lighter, then there will be alot of issues, i.e. Asian, European, etc. If, Tom had parted with a few thousand acres of his land, to the system or ........, he would have not SLEPT A NIGHT in any prison.

Believe me, this will not stop, even if there is International Pressure on the system or Government in Charge.

Our Kenyan System is full of money minded thugs. Corruption has hit through the roof, and our Politicians, love the feel of the System, as they make the smoke screen of the conditional dealings.

Well, there is a saying, you can change a man, but you can't change the village out of him.

GOD SAVE SAVE KENYA AND ITS COMMON WANANCHI.

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J Lipinski | May 10, 2009 3:24 PM | Reply

Thank you for this balanced piece. You have hit the nail on the head! The real problem is Kenya's flawed justice system. Tom could have easily changed the course of events 3 years ago by doing what most Kenyan's with means do - bribing those first at the scene. I'm not condoning this - just highlighting how corrupt the entire system is.

You can't blame the nation's assumption of the 'white toff's role in this very messy double murder. I lived in Kenya as an expat about a decade ago. To this day - I am still fascinated by the isolated existence white kenyans lead. They live in clusters in Karen, Laikipia, the coast etc... They pursue specific employment - jewellery, safari's, boutique bush hotels etc. etc. They rarely mix with the native kenyans (unless you incude their staff) While they are very proud to call themselves Kenyan once they leave JKIA - their existence in Kenya is so gated - they might as well be living in a completely different country. You also have to remember that Kenya's colonial past is very recent. Those that suffered under the colonial administration are very alive and a lot of them still hold the English in high disregard!

Many have drawn parallels between this story and the Wite Mischief era. This piece from vanity fair supports this view. It also manages to link every prominent white kenyan in a way that emphasises just how insular/incestous this community is: http://www.vanityfair.com/fame/features/2002/03/happyvalley200203

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Alexander Eichener | May 11, 2009 8:48 PM | Reply

Superficial article. You fail to analyze the many shortcomings of prosecution, and the high risk of a gambling and ultimate failed defence strategy. Also, you do not seem to have much of a clue about forensic ballistics, do you? Otherwise you would see (and discuss) on which crucial legal point (which Fred Ojiambo totally overlooked) the decision of Muga Apondi was based.

I do not say it is a good judgement. It is convolutred, totally blown-up (320 pages where 30-60 would suffice) and the bad evidence handling of police continued in court, showing all the weaknesses of Common Law criminal trials. But the decision is at least *tenable*. Though maybe not right.

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Chris Abate | May 12, 2009 2:21 PM | Reply

Just because the police did a shody job does not mean that Tom is innocent. Either him or Karl is reponsible for the killing. May be they should have arrested both individuals and left them to rot in jail like everyone else.

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IM | May 14, 2009 5:18 PM | Reply

"It took the trial of a white Aristocrat to make me understand the failings of Kenyan justice."

That probably says as much about you asabout the Kenyan judicial ssystem.

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Rob Crilly replied to comment from Alexander Eichener | May 28, 2009 8:24 AM | Reply

What forensic ballastics are you talking about? There was no analysis of the bullet fragments taken from Njoya's body, and no attempt to match them to Cholmondeley's gun. Muga Apondi set aside the evidence of the defence's (better qualified) forensic pathologist, who concluded that the wounds were not consistent with Cholmondeley's high-powered rifle. The wounds would have been accompanied by more severe bleeding and damage, according to the witness, had a hunting rifle been responsible. Apondi's reasoning was that Njoya bled to death - was that not evidence of severe bleeding?

No unbiased judge could have come to that conclusion.

Maybe you heard different evidence to me. Where were you in court? It's odd that we didn't meet.

What do you think?